CULTURAL CONNECTION

On May 13, 2016 the Department of Health and Human Services (DHHS) made changes to section 1557 of the Affordable Care Act. These anti-discrimination changes to the ACA are the biggest changes to the law pertaining to language access in nearly 20 years.

Section 1557 is a “non-discrimination” modification that bans discrimination in healthcare or health coverage on the basis of: race, skin color, national origin (including immigration status and English language proficiency). Section 1557 is distinct amid Federal civil rights laws due to its specific address of discrimination in health programs and activities.

The final ruling brings together, expands (by disallowing discrimination on the basis of sex, sexual orientation and gender identity) and works with existing, established federal civil rights laws and clarifies the regulations that DHHS will use when applying Section 1557 of the Affordable Care Act.

Which Healthcare Organizations Are Impacted by Section 1557?

Any health program or activity that receives federal financial assistance, which includes: credits, subsidies or contracts of insurance such as Medicaid.

Programs and activities that are governed by a federal agency such as Medicare and the federally facilitated insurance marketplace.

Anything created under Title I of the ACA such as state based or state partnerships.

Here are the key points all healthcare organizations must understand:

Qualified Interpreters

All hospitals, health plans, clinics, nursing homes, physicians and other healthcare providers must offer “qualified interpreters” to limited English proficient patients (LEP). Until now, healthcare providers had often tried to continue operations without using trained interpreters for the treatment of LEP patients. There has been a solid agreement in the academic and research communities about the diminished value and safety risks of using untrained bilingual staff such as adult family members, friends and minors as interpreters. Even today a large number of healthcare providers continue using unqualified interpreters when qualified interpreters and translators are readily available in-person or remotely.

What constitutes a qualified interpreter? Under the new rule, a “qualified interpreter” is outlined as an interpreter who adheres to ethics principles such as client confidentiality, demonstrates proficiency in speaking and understanding English and one additional spoken language, and is able to use all necessary specialized vocabulary and phraseology effectively, accurately, and impartially.

While the new draft rule does not specifically require the use of a certified medical interpreter, it is clear that this is the intent of the rule. By simply changing the legal standards from “competent” to qualified, DHHS is setting a higher standard of care for LEP, Deaf, or Hard of Hearing patients. All organizations receiving federal funds are now obligated to increase the professionalism of their language access services.

No More Family or Friends

The final ruling explicitly states that minor children, family members, or friends can no longer be relied upon as medical interpreters or to “facilitate communication.” The exception to this rule is when there is an imminent threat to the safety or welfare of an individual or public and no qualified interpreter is immediately available.

Increased Standards for Staff

The final rule severely limits bilingual or multilingual staff with no formal training in medical interpreting from acting as medical interpreters. This rule strongly distinguishes the difference between qualified and untrained bilingual/multilingual staff. According to the final version, bilingual staff must be qualified to serve as medical interpreters and must be able to demonstrate their proficiency in doing so. In short, the new rule requires that individuals serving as medical interpreters must be trained and tested.

Patient Responsibility

The final rule states it’s illegal to compel an individual with LEP to provide their own interpreter during medical interactions. While it is not mandatory for patients to accept the provider’s language resources, providers may not “coerce individuals to decline language assistance services.”

Translation

Final revisions to section 1557 of the ACA makes clear that healthcare providers are not only obligated to provide qualified oral medical interpreters, they also must provide qualified translators of written translated materials. These translators must meet the same criteria as qualified interpreters to allow for the proper translation of complex, highly technical medical documents.

The final rule considerably expands the quality of language access service and the breadth of the original LEP Guidelines. If you are concerned with your organization’s compliance with the new changes to the Affordable Care Act, contact CulturaLink today. We can guide your organization from the uncertainty into a solid language access plan that fully complies with these regulations.